There’s A Possible First Amendment Case About To Spring Out Of Lafayette Parish

A viral Facebook post originating in Lafayette Parish looks like it’s going to lead to a challenge of Louisiana law in court, and there are First Amendment implications.

Some background here: A fight between two students breaks out at Acadiana High in Scott, Louisiana, and it’s caught on video. The fight features thrown punches and a kid who is hit hard enough to make him fall and hit his head on a concrete bench (he was medically cleared, but it supposedly looked like a pretty nasty fall).

§107.4. Unlawful posting of criminal activity for notoriety and publicity

A. It shall be unlawful for a person who is either a principal or accessory to a crime to obtain an image of the commission of the crime using any camera, videotape, photo-optical, photo-electric, or any other image recording device and to transfer that image obtained during the commission of the crime by the use of a computer online service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service for the purpose of gaining notoriety, publicity, or the attention of the public.

B. Whoever violates the provisions of this Section shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.

C. The provisions of this Section shall not apply to any of the following:

(1) The obtaining, use, or transference of such images by a telephone company, cable television company, or any of its affiliates, an Internet provider, or commercial online service provider, or to the carrying, broadcasting, or performing of related activities in providing telephone, cable television, Internet, or commercial online services or in the production, exhibition, or presentation of an audiovisual work in any medium, including but not limited to a motion picture or television program.

(2) The obtaining, use, or transference of images by a law enforcement officer pursuant to investigation of criminal activity.

(3) The obtaining, use, or transference of images by any bona fide member of the news media broadcasting a news report through television, cable television, or other telecommunication.

(4) The obtaining, use, or transference of images for use in a feature-length film, short subject film, video, television series, television program, public service announcement, or commercial.

D. After the institution of prosecution, access to, and the disposition of any material seized as evidence of this offense shall be in accordance with R.S. 46:1845.

E. Any evidence resulting from the commission of unlawful filming or recording criminal activity shall be contraband.

Before I go any further, let me clarify that I am not a lawyer. I am a dude who writes words on the Internet about politics. I have read the law several times since the mom’s arrest became a viral story itself, and I am wondering if the Scott Police Department made a mistake.

I think, looking at the law, SPD had a case in the phrasing of Section A: “for the purpose of gaining notoriety, publicity, or the attention of the public.”

She posted the video as, essentially, a public service announcement. Because the law says “notoriety, publicity, OR the attention of the public” and not “AND the attention of the public,” I would think her post qualifies, even if it was done for the purpose she claimed it was (public awareness and safety).

However, both students involved in the fight are unnamed in news reports, meaning they are not 18. For privacy reasons, sharing a video of them is already problematic. I personally would not want to post a video of two underage kids fighting ESPECIALLY if they lived in the same small community I did.

But Adkins-Barras herself does not outwardly appear to be a principal or accessory to the original crime – the fight itself. It’s very difficult to understand how she is guilty under that wording of the law.

What’s more, where exactly do you draw the line over what someone can post on the Internet? I understand posting a video of yourself beating the nonsense out of someone for fun, but she is a mother of a child at the school, and a child who was not involved in the fight (that we currently know of and no news or police report indicates that child was). Is she not allowed to warn her community of what’s going on?

That’s what will likely become a First Amendment issue if the law is challenged with this arrest as the catalyst. It’s a very thin line between what the law was intended for (as I read it) and what Adkins-Barras was arrested for, but I think it is a line that may have been crossed by the SPD.

And so, the early indications (public reaction, lawyer statements, etc.) seem to point to a challenge of the law. SPD may have been a bit hasty in making the arrest, and it would provide a possible Constitutional challenge to this Louisiana law.

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UPDATE: The Daily Advertiser‘s Leigh Guidry put this story up this morning around the time I was writing this. It would seem we’re not the only ones concerned with the arrest of Adkins-Barras under this law.

“Reading the law on its face I am not certain how it can be applied to Ms. Adkins-Barras,” Jennifer Nelson said. “… It doesn’t seem she was involved in the alleged crime. On that basis alone, it seems odd (this law) is being used.”

As part of the Reporters Committee, Nelson focuses on First Amendment issues.

While the law in questions does, in fact, protect journalists and ensures press freedom in Section C(3), the overall concerns over the fact that Adkins-Barras was not involved in the crime and that she was simply raising public awareness are very valid.

“It’s always extremely concerning to see a law that limits a person’s ability to gather and disseminate information that is of interest to the public,” Nelson said. “From this perspective, it certainly is concerning that someone was arrested for communicating.”

The more I think about it, the less comfortable I am with this arrest, and I think Adkins-Barras has a good chance of winning any fight she takes up against her arrest. It seems pretty clear she was being punished for sharing the video, and they used a law that seemed close enough.

SPD Chief Chad Leger admits that the same law is used to arrest students who post those videos to social media, but in those cases in seems pretty clear that the ones who post the original video (not those who are simply sharing what a friend posted) were at the scene and a much clearer case can be made against them (they saw the fight and actively participated by filming it instead of finding an adult to break it up). Those arrests, though, don’t get as much publicity, he says, because they involve minors.

Which, again, I’m totally in favor of protecting the privacy of, and would be upset at Adkins-Barras if she posted a video of my kid in a fight with another kid. Still, it’s the law that was used to arrest her that is at the center of the controversy, and it was a bad law to use in her arrest.

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